Tallahala Lumber Co. v. Holliman , 125 Miss. 308 ( 1921 )

W. H. Cooic

delivered the opinion of the court.

This action is by Andrew Holliman, a minor, through his next friend, against the Tallahala Lumber Company, appellant, for damages for personal injuries alleged to have been sustained by him while in the- employ of appellant lumber company, and from a judgment in favor of plaintiff for eighteen thousand dollars the Lumber Company prosecuted this appeal.

The facts in this record, in so far as they are material to the decision of this case, are substantially as follows: The sawmill of appellant is located at Ora, on the Gulf & Ship Island Railroad, about thirty miles north of Hat-tiesburg, Miss., while the timber of appellant which it was then engaged in cutting and transporting to the mill at Ora was located east of Hattiesburg, in Perry county. In order to reach this timber appellant constructed a logging railroad leaving the main line of the Gulf & Ship Island Railroad at Hattiesburg and extending to or near Run-nelstown, in Perry county, a distance of about twelve or thirteen miles. At or near Runnelstown appellant established a camp and constructed homes and boarding facilities for its employees. It also constructed spur or lateral tracks extending from its main line out through its timber. One of these spur tracks extended from the camp into the woods a distance of about fifteen miles, and it was the custom of appellant to transport its employees, who resided at and near the camp, to and from their work, and for this purpose it used a shay engine and logging or flat cars. Appellant did not own the cars which it used in its woods and for transporting the logs, but secured them by contract from the Gulf & Ship Island Railroad Company. On each side of these cars there were two metal stirrups or steps, with a rod or handhold above each step, for the use of the employees in boarding the cars. These steps extended some distance below the bottom of the cars, and in the process of loading and unloading the cars with logs these steps were frequently twisted and bent. There was no conductor on the train which was used in transporting the employees to and from the camp, but this train was in the sole charge of the engineer who operated, it. It appears that this engineer selected the cars for that purpose from such cars as he found on the side tracks.

Appellee, a boy about eighteen years of age, was employed by appellant as a member of the track crew, and on the afternoon that he was injured appellant’s train, which consisted of an engine and two flat cars, was making its regular trip from the woods to the camp. Appellee, together with about one hundred other employees, was aboard, and after the train had proceeded some miles on the tri]i to the camp, some defect developed on the engine and the train stopped. After the train stopped appellee’s foreman got off the train and signaled his crew to follow him, and appellee, as well as a large number of other employees, got off the train. Appellee and other members of the track crew followed their foreman down the track, but when he reached a point near the front of the engine the train started»forward toward the camp, and immediately the employees who had gotten off the train hurriedly began to climb aboard, and as the train passed ap-pellee he endeavored to board it. According to the evidence for appellee, and there is very little conflict in the evidence on this point, the step, at or near the point where appellee undertook to board the train, was twisted or bent under the car twelve or fourteen inches. Appellee and other witnesses testified that he undertook to board the train by using this defective step, and that when he swung onto this bent step his foot slipped off the be.nt step, and his left foot was caught under the wheels of the car and the leg and foot so mangled that it was necessary to amputate tbe leg a few inches below the knee. The speed of the train at the time appellee undertook to board it was ■variously estimated at from four to eight miles per hour, and appellee testified that he did not observe the bent condition of the step until after he had caught the handhold and swung from the ground to catch the step, and that the bent condition of the step .was the cause of his foot slipping.

There is testimony to the effect that it was the duty of the engineer to give a signal when his train was ready to leave any given point, and the signal that the train was going to proceed on the trip to the camp was two blasts of the whistle and the ringing of the bell. This signal was not given at the time the train left the point where appellee was hurt, and the engineer testified that he only expected to proceed about two hundred yards further to a point where he could secure water. However, he testified that the reason he did not give the signal before starting his train was that he was busy endeavoring to remedy the defect in the engine and he did not have time to give the signal. There was also testimony to the effect that it Avas not uncommon for this signal to be omitted, and that when the train started to leave the place where appellee was injured the employees thought it had started for the camp, and that Avas the reason they undertook to get aboard.

The first assignment of error that is pressed by appellant is that appellee was not engaged in and about the master’s business but was acting beyond the scope of his duties when he was injured, and for that reason a peremptory instruction for appellant should have been granted. It Is urged that, since appellee left the train and Avas proceeding down the track in obedience to the orders of his foreman, he abandoned the business of the master and was acting beyond the scope of his duties when he left his foreman and, for his own convenience and comfort, undertook to board a moving train which had not indicated that it Avas going to proceed to the camp by giving the required signal of two blasts of the whistle and ringing of the bell.

It Avas Avith this assignment in vieAV that Ave have stated the facts with so much detail, and, under the facts in evidence here, we do not think the act of appellee in undertaking to get aboard this train severed the relation of master and servant. The appellee was aboard a train that had been furnished by the master for the purpose of transporting appellee and the other employees from their places of work to the camp. He left this train in obedience to the orders of his superior, and, since the train had stopped, and he had been called from the train by his foreman, being a member of the track creAV, his interpretation of the signal to mean that track work Avas necessary to enable the train to proceed was entirely reasonable. With no information in regard to the defect in the engine, and having folloAved his foreman to a point where it could be observed that the track was not defective, with the train moving forward toward the camp, with" the other employees hurriedly climbing aboard, appellee’s conclusion that the train had resumed its trip to the camp was entirely reasonable and natural, and his act in endeavoring to get aboard the train, where ho had a right to ride, was not an abandonment of the master’s business and did not destroy the relation of master and servant.

The second ground for reversal urged by appellant is that it Avas not shown that the appellant knew, or by the exercise of reasonable care and diligence could have knoAvn, of the alleged defect in the step or stirrup.

The evidence discloses that the Gulf & Ship Island Railroad Company maintains a system of car inspection in the city of Hattiesburg, and that it was customary to inspect these log cars when they passed through Hatties-burg; but the evidence, wholly fails to show that the particular car by which appellee was injured was inspected or was in good condition when it was delivered to appellant. It does not appear when the car was delivered to appellant or how long it had been in use in the woods. It does appear that the only inspection of the cars by appellant was made after they were loaded with logs. The engineer, who was in sole charge of the selection of cars to make up the train by which the employees were to be transported to the camp on this occasion found this car on a side track in the woods, and, without any examina.tion or inspection thereof, placed it for the use of the employees in riding from their places of work to the camp. The appellee was not a member of the logging or train crew, he had no connection with these matters and no occasion to use or be about the train or cars except in riding to and from his work, and the car was not an instrumentality furnished him until it was placed in the train on which he was invited or required to ride in reaching his home. It very clearly appears from the evidence that the step or stirrup on this car was bent and twisted when it was furnished for the purpose of transporting-appellee and the other employees to the camp, and we “think the finding of the jury that appellant did not exercise reasonable care and diligence in that regard is abundantly supported by the evidence.

It is next urged that the proximate cause of appellee’s injury was his grossly negligent act in making an improper use of the step of the car by jumping on the car while it was in rapid motion, and that for this reason this cause should be reversed. Under the provisions of chapter 135 of the Laws of 1910 (sections 502 and 503, Hemingway’s Code), it was a question for the jury as to whether, under the facts in evidence, the appellant was guilty of negligence which contributed to the, injury, and all questions of negligence and contributory negligence were properly submitted to the jury under instructions directing that, in the event the jury should find from the evidence that appellant was guilty of negligence, the damages recoverable should be reduced in the proportion to the amount of negligence, -if. any, attributable to appellee. Natchez & Southern Railroad Co. v. Crawford, 99 Miss. 697, 55 So. 596; Yazoo & M. V. R. Co. v. Carroll, 103 Miss. 830, 60 So. 1013; Mississippi Central Railroad Co. v. Robinson, 106 Miss. 896, 64 So. 838; Yazoo & M. V. R. Co. v. Williams, 114 Miss. 236, 74 So. 835.

Counsel for appellant further earnestly insists that this case should be reversed for the reason that the jury Avere misled by certain statements made by one of the counsel for appellee in his closing argument. It appears from a special bill of exceptions taken during the progress of the trial that this attorney stated in his closing argument that—

“If the jury believe the plaintiff Avould, if not negligent, be entitled to receive forty thousand dollars, that in this case they should return a verdict for tAventy thousand dollars.”

This statement of counsel Avas manifestly erroneous, and the objection of counsel to this remark should have been promptly sustained, and the jury instructed to disregard such statement; but, in vieAv of the fact that the Avritten instructions to the jury correctly and clearly announced the rule of laAV that must guide them in passing upon the questions of negligence and contributory negligence and the reduction of damages on account of contributory negligence attributable to the injured party, it is not probable that the jury Avas misled by this erroneous illustration, and we do not think this language of counsel would war-, rant a reversal. ‘ The other remarks of counsel which are complained of by appellant Avere not -made of record by a special bill of exceptions, and will not be considered on this appeal.

Finally, it is urged that, in attempting to board the moving train, appellee was guilty of negligence which contributed to his injury, and that, in view of the contributory negligence of appellee, the verdict is grossly excessive. Appellee sued for twenty thousand dollars and the jury returned a verdict for eighteen thousand dollars. In view of the pain and suffering and the nature of the injury in this case, Ave would not disturb this A'erdict if the appellee had been free of negligence, but we are convinced that appellee was guilty of negligence Avkich contributed to bis injury, and that the amount of the recovery has not been diminished in proportion to the amount of negligence attributable to him. It is difficult to apportion the negligence properly attributable to each of the parties, but we think it is clear that the jury failed to apply the rule of law applicable under our concurrent negligence statute, and that, under the facts in evidence in this case, the judgment should be reduced to twelve thousand five hundred dollars.

If the appellee will enter a remittitur here for five thousand five hundred dollars, reducing the judgment to twelve thousand five hundred dollars, the judgment will be affirmed ; otherwise, it will be reversed and remanded for a new trial on the question of the amount of damages only.

Affirmed conditionally.